9th Circuit Upholds Makeup Rule

So much for my predictions. In a well watched case, arising from the termination of a female bartender who refused to comply with the company's image program by wearing makeup, the 9th Circuit has now twice upheld the termination. Although I was correct that the initial panel decision in Jespersen v. Harrah's would be reviewed en banc, I was wrong in predicting that it would be overturned.

Friday, the 9th Circuit surprised me (and I assume quite a few others who tend to always assume that court will take the most liberal position possible) with its holding basically affirming the rationale of the panel. Jespersen v. Harrah's Operating Company, Inc. (9th Cir. en banc 4/14/06) [pdf]. Now is probably an appropriate time to change my third prediction that this would ultimately merit Supreme Court review. While certiorari may be filed, I would be surprised if it were granted.

The en banc court, took on the same two issues addresssed by the panel. First, with respect to its line of cases that grooming codes can are discriminatory if they are unequally burdensome on men and women, the Court reaffirmed that line, but found this record did not establish such a difference.

With respect to gender stereotyping, the Court was also careful not to cut off future claims, saying it is possible that there could be a grooming code that would fall because of gender stereotyping, but again not on the record of this case.

The Court tried to provide some guidance by noting this was not a grooming code that was intent on portraying women as sexual objects, nor one that led to an employee being harassed because of their failure to comply with a gender stereotype. But erhaps what was most persuasive to the Court was what might happen if it reversed the summary judgment for the employer:

We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self image, can create a triable issue of sex discrimination.

It seems the possibility of a world without grooming codes was just too much for at least 7 of the 11 judges assigned the case.

The decision had two dissents, including an eloquent one by Judge Kozinski, which among other arguments would find requiring makeup of women only is in fact a classic sexual stereotype:

Women’s faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on—and presumably enjoy wearing —cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah’s quaint notion of what a “real woman” looks like.

This is a narrowly written case, designed not to hem the court in for future cases. But for Jespersen, she has now had her best shot.

For more on the decision, check out Ross Runkel's analysis, Gender-based grooming code survives Title VII attack. He starts provocatively, "The decision leaves me wondering whether that court ever reads the statute," and concludes even more emphatically, "The grooming code fit the court's own sex stereotypes exactly.